STAND YOUR GROUND LAW ABUSES ORIGINAL "CASTLE" DOCTRINE AND LEADS TO MORE MURDERS

Testimony of the Lawyers’ Committee for Civil Rights Under Law, Submitted by Tanya Clay House, Director of Public Policy Before the U.S. Senate Judiciary Subcommittee on The Constitution, Civil Rights and Human Rights, October 29, 2013

Senator Durbin and all the members of the Senate Judiciary here today, thank you for holding this critical hearing to examine “stand your ground” laws that have significantly and unnecessarily expanded the permissible use of deadly force.

We appreciate this opportunity to express our deep concern with the civil rights implications in the expansion of self-defense laws and the increasing number of states adopting “stand your ground” laws.

The Lawyers’ Committee for Civil Rights Under Law was established in 1963 as a nonpartisan, nonprofit organization at the behest of President John F. Kennedy. Our mission is to involve the private bar in providing legal services to address racial discrimination and to secure, through the rule of law, equal justice under law. For 50 years, the Lawyers’ Committee has advanced racial equality in areas such as educational opportunities, fair employment and business opportunities, community development, fair housing, voting rights, environmental justice, and criminal justice. Through this work, we have learned a great deal about the challenges confronting our nation as it continues to tackle issues of race and equality of opportunity for all.

The Lawyers’ Committee is committed to ending gun violence and racial profiling in the nation’s criminal justice system and the protection of the right of citizens of all colors to walk the streets and sidewalks safely. The tragic killing of Trayvon Martin, the passage of Florida’s and other states’ “stand your ground” laws, combined with a growing sense of injustice, has sparked a national debate about racial equality in the criminal justice system. The killing of Trayvon Martin represents more than just one death and is an example of the racial disparities existing at every stage of our nation’s criminal justice system.

In light of these racial disparities, the Lawyers’ Committee urges Congress and all policymakers to take a close look at the purposes and effects of “stand your ground” laws being introduced and passed around the county. Further, analysis of these laws is dangerously incomplete without acknowledging the reality in which these laws are enacted, implemented, and understood. While the effectiveness of “stand your ground” laws is questionable at best, the civil rights implications are clear.

These laws not only have disproportionately negative effects on people of color, but contribute to the “black as criminal” stereotype which plagues our society. In application, “stand your ground” laws have been shown to disproportionately benefit white defendants while also having the potential for real, deadly consequences, highlighted by the Trayvon Martin case itself. In light of the questionable efficacy of these laws, and civil rights concerns, we urge Congress and all policymakers to encourage the repeal and/or reform of “stand your ground” laws around the country.

Background: “Stand your ground” laws are a significant expansion of the long-standing doctrine of self-defense. The doctrine of self-defense originates in English common law and has always been strongly limited by the doctrine of necessity, which imposed a general duty to retreat.Some states adopted an exception to the general duty to retreat, called the “castle doctrine,” which allowed for the use of force, even deadly force, to protect one’s property and dignitary interests in one’s home. Traditionally, both general self-defense and defense of one’s home under the “castle doctrine” were affirmative defenses, meaning a defendant asserted the defense at trial.

The Supreme Court first sanctioned the “castle doctrine” with its decision in Beard v. United States. Finding no duty to retreat in the killing of a trespasser on the defendant’s property, so long as he reasonably believed it necessary to save his own life, the Court held:

“The defendant was where he had the right to be […] and if the accused did not provoke the assault and had at the time reasonable grounds to believe, and in good faith believed that the deceased intended to take his life, or do him great bodily harm, he was not obliged to retreat, nor to consider whether he could retreat, but was entitled to stand his ground.”

By the second half of the twentieth century, all jurisdictions had adopted some version of the “castle doctrine.” In the 1980s, a handful of state laws went a step further and passed laws allowing for immunity from prosecution in cases where a homeowner used deadly force against another who unlawfully and forcibly entered the person’s residence.

The implementation of “stand your ground” laws by state legislatures occurred only in the last decade, and constitute a significant departure from the long-standing common law doctrine of self-defense. Florida was the first state to pass a “stand your ground” law in 2005.5 One can speculate about the motivation of the support of such laws en masse through the strong support by the American Legislative Exchange Council (ALEC) and the National Rifle Association (NRA). As a result of this almost decade-long campaign, more than 22 states now have “stand your ground laws” that do not require retreat from anywhere an individual has a legal right to be.

“Stand your ground” laws constitute an unprecedented expansion of the traditional self-defense doctrine in several ways. First, “stand your ground” laws extended the castle doctrine to apply to places outside the home, such as a vehicle, workplace, or anywhere an individual has a legal right to be, thereby diminishing or eliminating the duty to retreat.

Second, they create a “presumption of reasonableness” in favor of a defendant who uses deadly force in defense of the home or automobile, shifting the burden of proof to the prosecutor to prove that the defendant did not hold a reasonable fear of imminent death or great bodily harm. “Stand your ground” laws justify the use deadly force in situations not covered by traditional self-defense doctrine, including: those in which only property is threatened; those in which the threat is not imminent; and those situations where the person using force “reasonably believes” the threat is deadly, when in fact, it is not. This unprecedented expansion of justifiable homicide does not serve the traditional purposes of the self-defense doctrine and constitute a major departure from well-settled legal doctrine.

“Stand Your Ground” Laws Negative Impact on Civil Rights a. “Stand your ground” laws create more victims than they protect Defenders of “stand your ground” laws argue that the laws protect victims of violence from needless prosecution. However, research on the effects of “stand your ground” laws shows that any benefit bestowed to victims is outweighed by the fact that the laws actually create more victims than they protect. Further, there is no evidence that “stand your ground” laws or other expansions of self-defense laws have any deterrence effect on crimes such as burglary, robbery, and aggravated assault. Instead, according to a recent study out of the University of Texas A&M found evidence that the passage of “stand your ground” laws lead to more homicides.

Specifically, the study determined that the passage of the Texas “stand your ground” law lead to an 8% increase in the number of murders and non-negligent manslaughters. If this holds true in other states with “stand your ground” laws, it translates into an additional 600 murders a year. The study concludes that “stand your ground” laws either encourage more people to use lethal force in self-defense, and/or make it more likely that situations escalate to the use of violence in states with the laws.

The ineffectiveness of “stand your ground” laws in deterring crime and reducing violence is compounded by the inconsistency in the way the statutes are implemented. "Stand your ground” defenses can be applied at multiple points in the investigation process. Consequently, law enforcement agencies spend different amounts of time and utilize different methods in handling incidents where a person claims a stand your ground defense. In addition, the system offers substantial discretion to authorities at every level, which is much more difficult to monitor and evaluate, and much more vulnerable to creeping bias.

“Stand your ground” laws also have the potential to confuse courts and jurors, leading to the injustice through their inconsistent application and inherent ambiguity. The trial of George Zimmerman in the aftermath of the death of Trayvon Martin provides a ready example. Police did not arrest Mr. Zimmerman immediately following the shooting on the basis of Florida’s “stand your ground” law. Later at trial, he did not affirmatively claim Florida’s “stand your ground” defense, and instead asserted self-defense as his motivation for the shooting. Nevertheless, the trial court instructed the jury about Florida’s “stand your ground” law, and jurors discussed the law in their deliberations. One juror reported after the trial that the “stand your ground” instruction was key to reaching their verdict.

In contrast, a woman named Marissa Alexander, an African-American, was sentenced to 20 years in prison for firing a warning shot into the wall of her Florida home after an argument with her husband, against whom she had a protective order and who had been arrested twice for attacking her. Alexander claimed he was chasing her through the house, beating her, and threatening her life, a story that comes close to the ideal self-defense case “stand your ground” laws are supposed to cover. Alexander asserted the Florida “stand your ground” defense, but was denied.

The judge found that she was the “aggressor,” and therefore not entitled to the defense, because she left the room to retrieve her handgun during the confrontation with her husband. The inconsistencies and confusion “stand your ground” laws engender undermines faith the criminal justice system and may lead to misplaced legal entitlement to use force. There is no place for these laws in a criminal justice system meant to reduce violence and instill repose.

b. The negative civil rights implications of “stand your ground” laws for people of color

The Lawyers’ Committee and many in the civil rights community have long asserted that “stand your ground” laws have a disproportionately negative effect on individuals of color, both as defendants and victims.

“Stand your ground” laws do not function even-handedly to justify homicides among blacks and whites. A recent study by The Urban Institute supports this contention. The study found substantial evidence of racial disparities in justifiable homicide outcomes of cross-race homicides nationwide. The existence of “stand your ground” laws appears to worsen the disparity. Specifically, the study found that whites who kill blacks in “stand your ground” states are far more likely to be found justified in their killings. In states without “stand your ground” laws, whites are 250 percent more likely to be found justified in killing a black person than a white person who kills another white person. In “stand your ground” states, that number jumps to 354 percent.

The inherent ambiguity of “stand your ground” laws may increase violence and wrongful deaths based on misunderstandings, miscommunication, and racial and ethnic prejudices. The “Black-as-criminal” stereotype has been shown in several studies to cause people to perceive ambiguously hostile acts (i.e. acts that can be considered either violent or non-violent) as violent when a black person engages in these acts and non-violent when a non-black person engages in these same acts. In self-defense cases, culture acquires legal significance as the perception of a threat based on racial stereotype and may mean the difference between life and death for the victim.

Instead of assisting law enforcement in efforts to stem crime, “stand your ground” laws have contributed to an atmosphere of vigilante justice in our society. These laws, like those in effect in Florida and other states, may allow suspected murderers immunity for conduct that goes against the fundamental goals in criminal law of deterring violence and promoting a safe and ordered society. They may also serve as a shield for unjustified or racially motivated intentional attacks. Further, in the case of Florida’s legislative history, the lack of stated need or prudent reason for such a drastic departure from the previous self-defense law calls into question whether this law is necessary or overbroad. In light of the public interest, the benefit of these laws has not been justified, but their cost is significant. These laws suggest that, in some circumstances, it is socially acceptable to kill people of color because such actions will ultimately be viewed as reasonable and justified. This is not only bad for public safety, but also fails to achieve ultimate goal of justice and closure after crimes occur.

The Lawyers’ Committee commends the U.S. Commission on Civil Rights on its decision to conduct a study on the possibility of racial bias in the nature, enforcement, or application of “stand your ground” statutes. We look forward to the results of that study in the coming months and call on policymakers to also examine the real and potential impacts of “stand your ground” laws.

While the necessity and efficacy of these laws are unsupported in empirical research, these laws place a demonstrative unfair burden on people of color in violation of their human rights. This is unacceptable as should not be tolerated in the United States.

Since its inception, the Lawyers’ Committee has stood against discrimination based on race, national origin, and religion and supports the national and international movement to finally bring an end to racial discrimination in the United States. Hence, we urge policymakers not only to rescind or amend “stand your ground” laws, but the Lawyers’ Committee reiterates the call to end racial profiling by law enforcement and the public alike. Federal legislation – the End Racial Profiling Act – would train, and if necessary retrain, police departments on hate crimes and racial profiling, which will help prevent more senseless harassment, arrests and ultimately killings.

Although “stand your ground” laws technically serve to provide an affirmative defense, they contribute to a culture of vigilantism in our nation and encourage the proliferation of racial bias and profiling by the public. As this country commemorates the historic March on Washington for Job and Justice and Martin Luther King Jr.’s “I Have a Dream” speech, we must not allow “stand your ground laws” to undermine this nation’s progress toward a more just and equal society for all of its citizens. The Lawyers’ Committee remains committed toward correcting these laws others so that our criminal justice system is truly just.

Tanya Clay House, Director of Public Policy, Lawyers’ Committee for Civil Rights Under Law